Legal Considerations for
Respiratory Therapists
King’s Mountain Symposium
Wellmont Bristol Regional Medical
Monarch Auditorium
October 23, 2014
Jimmie C. Miller
Hunter, Smith & Davis, LLP
1212 North Eastman Road
Kingsport, Tennessee 37664
jmiller@hsdlaw.com
423-378-8852
Objectives
• Discuss General Legal Concepts and Terms
• Discuss Cases in Med-Mal Litigation as Related
to RT
• Discuss Med-Mal Litigation Time Frames
• Discuss Areas of Potential Liability Exposure
for RT
• Discuss actions of RT to minimize legal risk
• Discuss Documentation Issues
Legal Terms and Concepts
• Plaintiff – patient or family members who
bring a lawsuit
• Defendant – physician, nurse, RT, hospital, or
other entity that is being sued
• Complaint – the document that is filed in
court and begins the lawsuit process
• Negligence – a breach by the defendant(s) of
the applicable standard of care that causes
injuries to the plaintiff/patient
Legal Terms - continued
• Standard of care – what a reasonable RT
would do under same or similar circumstances
in the medical community or a similar medical
community
• Causation – evidence that establishes that the
injury to the plaintiff was caused by the
breach of the standard of care, i.e. the injuries
would not occurred but for the breach by the
RT
Legal Terms
• Health Care Liability Action – new
terminology used in Tennessee law instead of
medical malpractice
• Statute of Limitations – length of time a
plaintiff has to sue a defendant for med-mal
– In Tennessee
– In Virginia
1 year + 120 days
2 years
Legal Concepts
• Notice of Intent –
– Law requires plaintiff provide written notice to
defendant at least 60 days before suit is filed and
provide a HIPAA compliant authorization
– Frequently provides good procedural defense
because statute requirements are often not met
Expert Testimony
• Law requires plaintiff prove her/his case by
expert testimony.
• Expert witness must generally be licensed in field
of defendant/ RT expert if RT is defendant; MD
expert if MD is defendant
• Expert must be licensed in Tennessee or a
contiguous state
• Expert must be familiar with Standard of care in
our community or a community similar to our
community
Damages
• Economic
Medical expenses, past and future, Life Care Planners
Death cases evaluated less than cases where plaintiff
requires extensive future medical treatment
Lost Earnings
• Non-economic
Pain and suffering, loss of consortium
Tennessee has cap of $750,000 or $1 million. Larger cap applies if
amputation of two limbs, spinal cord injury involving paraplegia or quadriplegia,
or third degree burns of forty (40) percent of body or face, or death of parent
with minor children.
BUT cap is not applicable if medical records are falsified, destroyed or concealed
with purpose of evading liability in the case.
- Documentation
Cases – Newborn Death
• 2001, Seattle, Washington
• Delivery, nurse documented “alert &
responsive”
• Vital signs not taken “at specified time” then
newborn not breathing
• Breathing tube was placed.
• Allegation that RT used wrong adaptor and O2
was going into baby with no way out
Newborn case - continued
• Lungs hyper-inflated
• Baby had cerebral palsy and suffered brain
damage
• Settlement with hospital $7.8 million
• Confidential then court ordered release of
documents
Monitoring of Vent Pt During CT
• Mercer v. Vanderbilt University, Inc. and nurse
and RT,
• 1998 event/final decision 2004, $7,366,000
jury verdict in favor of plaintiff against hospital
• Pt in MVA/blood alcohol .13, place on
ventilator and had severe agitation
presumable from alcohol withdrawal
• Four days after admission, needed CT for facial
injuries
CT Monitoring case - continued
• RN and RT accompanied Pt to CT, with portable
cardiac monitor and portable ventilator attached
to 1 of 3 oxygen tanks, 1 full and 2 half-full
• RT did not record ventilator settings and alarm
parameters prior to leaving neuro ICU
• 1030 am pt given paralytic, scans at 1047 and
1056
• Pt retracted from CT scanner table, pink and
breathing
CT Monitoring case - continued
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Pt moved to his bed
1105 Code called and team resuscitated pt.
Severe and permanent brain damage sustained
At trial pt living in NHC Healthcare in Dickson, TN
Plaintiff claimed RT attached ventilator to an
oxygen tank only half-full and tank ran out during
CT
• Defense was pt suffered a catastrophic event,
seizure or a malignant heart arrhythmia caused
by alcohol withdrawal
Case – Unsuccessful intubation
• Kott v. St. Joseph’s Hospital, Syracuse, NY
• 2011
• Pt. admitted for SOB and dx pulmonary
hypertension
• Patient fell in bathroom while being attended
by nurse
• Nurse called CART Team, but no MDA
responded
Unsuccessful intubation -continued
• RT attempted to intubate but unable to do so
because blood obstructed airway
• Pt intubated after sixteen minutes without
oxygen
• Death
• Lawsuit based upon information contained in
the report of the investigation by the
Department of Health
• Finding: “inaccuracies in documentation“
Case – Transport/Lack of Training
• 6/28/13, Hughes v. Cataret General Hospital,
NC
• Pt, age 13, hit head riding a skateboard
• CT at local hospital normal, but decision to
transfer to tertiary center because of concern
of skull fx, pt. was intubated
• Ambulance staffed with 2 EMTs, 1 RN, 1RT
• RT licensed less than one year
Transport case -continued
• Pt awoke, pulled out intubation tube
• Ambulance pulled over, parents in car behind
ambulance
• Crew worked to sedate and re-intubate, RT
primarily responsible for intubation
• Pt given paralytics and sedatives
• Pt intubated in esophagus, no confirmation
testing, i.e. colorimetric testing or
capnography
Transport - continued
• HR 30, no pulse, CPR initiated, epinephrine
• Defibrillator utilized
• Called ED MD to obtain permission for use of
Amiodarone, MD advised to check tube
placement and suction, alleged no testing
performed
• Ambulance diverted to another closer hospital
• RT in ED extubated and re-intubated at
Carolina East Hospital
Transport – continued
• Pt transferred to tertiary hospital, Vidant
Medical Center
• No brain activity, life support withdrawn
• Father employed at hospital
• Suit filed, allegations against hospital were
that RT failed to keep patient sedated and was
not trained in transport
Case – Repositioning of ET tube
• 2008, San Diego area
• Pt, Florida resident at California weight loss
spa
• Pt admitted to hospital for tonsil abscess
• Surgery performed, taken to PACU
• Radiologist called RN in PACU to advise that
endotracheal tube needed to be repositioned
• RT at RN’s instruction repositioned tube
Repositioning of ET tube – continued
• Pt died
• Autopsy – complications from tonsillar abscess
• Allegations of “cover up” by hospital
Negligent Intubation
• Tennessee case
• Pt. admitted for repair of brain aneurysm
• Tracheostomy performed, stay suture placed
to help reinsert the trach if became dislodged
• Trach dislodged while pt being turned
• Several unsuccessful intubation attempts
Negligent intubation - continued
• Surgeon who performed trach pulled suture
line which opened airway and allowed
intubation
• Prolonged oxygen deprivation, patient had
brain injury and required life time care
• Settled for confidential amount
Negligent Ventilator Setup
• Tennessee case
• Same plaintiff’s lawyer, John Day in Nashville
• Minor child born prematurely, d/c home on
ventilator
• Periods where child could breathe without the
assistance of the ventilator.
• Mother detected an irregularity with
ventilator
Negligent Ventilator Setup
• RT set up a backup ventilator and allegedly
improperly set the control settings.
• Mother awakened by irregular breath sounds
from ventilator
• Trach tube attached to ventilator had come out of
child’s neck.
• Due to improper settings, the ventilator alarm did
not sound.
• Child suffered permanent injuries
• Case settled during mediation
Timeline for Med Mal
Speedy Justice is a Myth
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February 7, 2010
Feb. 20, 2010
February 19, 2011
June 18, 2011
December, 2011
December, 2012
March 2013
Pt. admitted to hospital
Pt. expires
Notice of Intent letter
Lawsuit filed
Discovery begins
First Trial date
New trial date
Exposure Areas for RT
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Airway management
Medications (Atrovent/glaucoma)
Vents/alarms and other equipment failures
Infection Failure
Patient falls
Protection
• If an employee of a hospital or nursing home
or other entity, then should be an insured
under your employer’s professional liability
(med-mal) insurance policy
• If you work as an “independent contractor”
for an entity, or if you do work for an agency
part-time or PRN, then you may or may not be
covered. Confirm in writing if you are covered
by med mal insurance.
Documentation
• Central Focus in every medical malpractice
case
• Best friend v. worse enemy
• Shield or sword
Documentation Myth
• If it’s not documented, it wasn’t done.
– If not documented, it’s not documented.
– Impossible to document every action.
– Patient care priority not documentation.
Medical Record – Legal Aspects
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Internal Peer Review
Investigations by Department of Health
Disciplinary Investigations by Licensing Boards
Medical Malpractice Lawsuits
Documentation – All Relevant
• Physicians’ orders, progress notes, operative
notes, H & P, Discharge, etc
• Nurses’ notes
• Dietary
• Imaging
• Labs
• Pathology
• Physical Therapy
• Respiratory Therapy
Common Charting Errors
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Omissions
Vagueness
Inconsistency
Alterations or additions
Subjective versus Objective Descriptions
Unapproved Abbreviations
Electronic Health Record
Legal Implications
• New in legal cases – Initial Impressions
• Confusion can lead to suspicion that information is
missing or being withheld.
– What clinician views on screen may not exist.
– Systems built for care not court.
• Not Fit for Print
– What prints is usually not the format that provider is used
to viewing.
– Nearly impossible to reproduce exactly what provider saw
– Views differ between provider, i.e. MD sees different
screen than RT or nurse
EHR – legal implications
• Conflicting terms
– varying definitions, e.g. “Accept”
• Could mean a record was pending, filed, shared, or
officially accepted by a physician.
• Paper record, pending would be equivalent of MD
writing note on a piece of paper, helpful at the time,
but not intended for the medical record, like sticky note
EHR – legal implications
• Time Stamps
• Even time stamps, which would seem to be irrefutable, may
need explaining, e.g. RT takes pulse ox at 9 am. But does not
close the entry for another 30 minutes, reading may post to
the record with a time stamp of 930.
• Or RT testifies she was in ED at 1000, but HER indicates she
accessed records on another floor at the same moment. The
time stamp may have been recorded when a coworker
completed and filed the record—after RT raced to the ED.
• Both instances require explanation in court.
EHR - Legal Implications
• Audit Trails
– Now regularly requested in med mal cases
– In most cases more than one witness is needed to
explain how the system works
– Issues relate to record creation, storage, and
metadata
– One case required hospital to bring vendor’s
trainer to explain system
Audit Trails
• Used to contradict knowledge of provider, e.g.
• Patient returned to ED, MD testified that she
was unaware of patient’s return to ED, audit
trail revealed that MD was aware
• Not relevant to SOC issues, but now MD’s
credibility at worse, memory at best, is in
dispute.
Concerning Aspects of EHR
• Every assessment is identical, day after day,
page after page, and problem created is
whether provider made a new assessment or
simply pressed a key to restate prior
assessment. E.g. case where neuro
assessment is identical, down to same
typographical errors.
• Critical clinical documentation looks exactly
the same as someone’s dietary assessment.
Other issues
• EHR information more legible
• Pop-up alerts, reminders for follow-up
• See in pharmacy cases with drug interactions
• Copy and Paste Function can perpetuate mistakes
• Error as easy as click of mouse
Questions?